REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
CONTENTS
Wednesday 29 May 1991
Freedom of Information and Protection of Privacy Act, 1987
Ministry of Community and Social Services
Adjournment
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair: Duignan, Noel (Halton North NDP)
Vice-Chair: MacKinnon, Ellen (Lambton NDP)
Cooper, Mike (Kitchener-Wilmot NDP)
Frankford, Robert (Scarborough East NDP)
Jamison, Norm (Norfolk NDP)
Marland, Margaret (Mississauga South PC)
Mathyssen, Irene (Middlesex NDP)
McClelland, Carman (Brampton North L)
Morin, Gilles E. (Carleton East L)
O'Neil, Hugh P. (Quinte L)
Owens, Stephen (Scarborough Centre NDP)
Villeneuve, Noble (S-D-G & East Grenville PC)
Substitution: Mills, Gordon (Durham East NDP) for Mrs Mathyssen
Clerk: Arnott, Douglas
Staff: McNaught, Andrew, Research Officer, Legislative Research Service
The committee met at 1537 in room 228.
REVIEW OF FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, 1987
Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.
The Chair: I would like to call to order the standing committee on the Legislative Assembly.
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
The Chair: We have a group of witnesses today from the Ministry of Community and Social Services. Would they come forward at this time, please. I understood there were four.
Mr Gooch: There are other people from the Ministry of Community and Social Services present. If you would like, they can be publicly identified.
The Chair: Yes, please. Thank you for appearing here this afternoon. If you could all state your names and the positions you hold within the ministry.
Mr Gooch: My name is Peter Gooch. I am a policy analyst in the children's services branch at the Ministry of Community and Social Services. My responsibilities have to do with legislative policy largely concerning the Child and Family Services Act.
Ms Koskie: My name is Mary Pat Koskie. I am counsel in the legal branch.
Ms Thompson: My name is Sandra Thompson. As well, I am counsel in the legal services of the ministry.
Ms Shilman: I am Sora Shilman. I am a policy analyst in the FIPP unit of the ministry, which is the co-ordinating office for our ministry.
The Chair: You have as much time as you want to make your presentation here this afternoon.
Mr Gooch: I am hoping that members of the committee have a handout that was prepared for the committee concerning the interrelationship of the Child and Family Services Act as it applies to children's aid societies and the Freedom of Information and Protection of Privacy Act.
It is my understanding that the committee had heard at least one submission from a citizen expressing concern about the fact that the Freedom of Information and Protection of Privacy Act does not apply to children's aid societies and other agencies that are funded by the Ministry of Community and Social Services. What I would like to do is just take a brief amount of time to explain the current state of the law concerning records and confidentiality as it applies to MCSS agencies and then simply take whatever questions the committee has. Is that reasonable?
The Chair: Please proceed.
Mr Gooch: Okay. What you should know, just for background, is that the Child and Family Services Act is a very large statute. It governs a very broad range of interventions, in general terms interventions with children with special needs. The young offenders programs that the government runs for children aged 12 to 15 are governed by the Child and Family Services Act. Matters concerning adoption, children in need of protection, some children's mental health services are all governed by that statute.
All child protection services are governed by children's aid societies. Children's aid societies are agencies. They are not government, they are not-for-profit corporations with volunteer boards and as such they are not part of government, although they are very heavily regulated and controlled and their mandate is very clearly set out under the Child and Family Services Act. The current status of the law as it applies to records of children's aid societies is as follows.
Let me back up a bit and say that obviously the Ministry of Community and Social Services is governed by the Freedom of Information and Protection of Privacy Act. In those instances where there are services provided directly by the ministry, either schedule 1 agencies or other services like young offenders custody or detention facilities, wherever the ministry is running a facility, of course the Freedom of Information and Protection of Privacy Act applies.
It also applies to two agencies established under the Child and Family Services Act: the Child and Family Services Review Board and the Custody Review Board. The Child and Family Services Review Board is a quasi-judicial review body that reviews certain matters where decisions are made about children and the Custody Review Board also has a very limited role under the act to provide recommendations to service providers concerning decisions made about young offenders in custody or detention.
So where the ministry runs a facility or where there is a scheduled agency under the Child and Family Services Act, the Freedom of Information and Protection of Privacy Act applies. The Freedom of Information and Protection of Privacy Act does not apply to children's aid societies or the many other agencies which MCSS funds, whether nonprofit corporations or in some cases for-profit service providers. Although they are governed by the Child and Family Services Act, they are not government per se, so the Freedom of Information and Protection of Privacy Act does not extend to them.
When this act was enacted in 1984 there was a part of the act, called part VIII, which concerns records and confidentiality, and the intention clearly was to bring all those service providers, that is, agencies that MCSS funds, into a protection-of-privacy and confidentiality scheme and to govern the way that service providers disclosed records or provided access to information. Though the part was written into the law, it was never brought into force. When the act was proclaimed, it was proclaimed excepting the sections of the whole part VIII, which governs records and confidentiality, and it remains not in force.
Mr H. O'Neil: Why did that happen? What happened that they did not bring it in at that time?
Mr Gooch: I was not employed by the ministry at that time, so I cannot give you a definitive answer. What I have been told is that it was recognized in 1984 that part VIII as it was enacted was deficient. It was not an adequate scheme. It was known that there were flaws in it. Also, I believe, although I am not certain -- some of you may well know much better than I do -- the government at that time was considering its own freedom-of-information and protection-of-privacy legislation. Certainly by 1987 it was clear that that legislation was going to be brought into force and it was decided that we should look at part VIII and bring it into as close a consistency as was reasonable with the provincial statute before it was proclaimed.
A lot of effort was put into having an open and reasonable process to effect those changes, so in 1987 and 1988 the Ministry of Community and Social Services consulted extensively, mostly with service providers who would be directly affected by the proposed changes. We also of course had to take some time at the conclusion of that consultation to draft the proposed changes and go through cabinet approval. As a result, it took many years, but in June 1990 there was an amending bill to the Child and Family Services Act introduced by the previous government, very late in the spring sitting of the Legislature.
Part of the reason it took so long is because that amending bill addressed many other matters, many other provisions sprinkled throughout the Child and Family Services Act. It was a very extensive amending bill. But a good part of it, a significant part of that amending bill concerned part VIII and proposed some very particular changes to the scheme as it was enacted, as I said, to bring it as close as seemed to be reasonable then to the provincial statute.
As you are aware, with the rising of the Legislature the bill died and the present government has not yet introduced an amending bill to go forward with those amendments.
I am not sure if it is of interest to the committee, but what I could do is very briefly outline what kinds of provisions of part VIII now exist as they are enacted in the statute: Part VIII concerns the disclosure of records by service providers. Like the provincial statute, it permits disclosure on consent and it sets up some limited, specified exemptions when disclosure can be made without consent; it provides access to records. Children 12 and older can have access to their own records and parents can have access to any records which concern them, which are their own records, and they can also have access to records of their children; it permits service providers to deny access, again in limited, specified circumstances; it also sets up a process roughly analogous to the provincial statutes routes of appeal to the commissioner in that under the Child and Family Services Act, as it is enacted, the route of appeal would be to the Child and Family Services Review Board, which I mentioned earlier.
In 1990, amendments were again proposed to bring part VIII into consistency with the provincial statute. One of the major changes that was proposed was that there would be provisions introduced regarding the collection of information. As part VIII now stands, there are no provisions, or very limited requirements, around the collection of information. We would have proposed changes that would have required collection of information directly from the person concerned, again with limited, specified exemptions.
It also would have introduced changes to make sure that children's aid societies could carry out an investigation of allegations or evidence or information about a child who was in need of protection or alleged to be in need of protection. There were amendments introduced that would make it clear that the limits on disclosure, the limits on collection and so forth would not impede that very central core function of the children's aid society to conduct an investigation about a child in need of protection.
There were also several -- I hesitate to use the word "technical" because there are always issues of policy and legislative change, but there were some smaller changes introduced to bring part VIII into closer consistency. For example, though the present scheme would allow individuals to propose corrections to the records, there was nothing to allow individuals to attach a statement of disagreement to a record. The amendments would effect that sort of change.
The present Minister of Community and Social Services has not yet made a decision on whether to proceed with those amendments. It has not been a matter which has come before her as an issue of priority.
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Mr H. O'Neil: Just for my own information, in a case where some of the children's aid societies are dealing with sexual abuse, what happens now? In other words, no one, the parents or the children, would have access to those records?
Mr Gooch: The ministry has in place a policy. There is a manual called the Case Information Disclosure Policy Manual and it sets out the expectations of the ministry on service providers. It was widely distributed in 1985. Because part VIII was not being brought into force, it was felt that to fill that gap to some extent, there would be guidelines sent out. As I say, they were widely distributed, and it remains the ministry's policy.
What the guidelines say is very close in fact to what part VIII as enacted says. The ministry's policy is that children 12 and over, and parents, in the case you mentioned, should have access to their records, and service providers, the children's aid society, should not refuse to disclose a record unless there were some reason to believe that significant physical or emotional harm would come to the person who was receiving the access to their own record.
I would be misleading you if I left you with the impression that all service providers follow those guidelines. They are there as guidelines; they have no weight in law. Service providers do have a significant amount of discretion to either follow the guidelines or not. There is not a uniform following of the guidelines across the province, so I suspect the children's aid societies may differ in the extent of access they grant to parents.
Mr H. O'Neil: They would sort of weigh on the side of keeping that information confidential as a protection to either the child or --
Mr Gooch: It really might depend on the policy of the particular children's aid society, but it is my understanding that many children's aid societies feel very strongly that the information they carry is very sensitive and possibly damaging, and in many cases they are reluctant to release records.
Mr H. O'Neil: You mentioned the age of 12. What happens under the age of 12?
Mr Gooch: If part VIII, as it is enacted right now, were brought into force, children under the age of 12 would not have a right of access to their records. Under the amendments, that remains the same. There was no proposal to --
Mr H. O'Neil: What about parents of those children under the age of 12?
Mr Gooch: They can have access as of right to their children's records. The only restrictions on that access are the very specific exemptions set out in the act, where harm might come to the person who is receiving access. Also, there are some restrictions about the release of psychiatric, medical or other kinds of assessment reports, where the service provider is not required to release those reports but would be required to provide the parents or the child, as the case may be, with the name of the person who conducted the assessment so they could follow up with that professional.
Mr H. O'Neil: In the particular case we heard, which was back in the fall, where this person was claiming it was hard to get information -- I do not know whether you are familiar with this particular case that was brought before the committee?
Mr Gooch: I did read the transcript of the presentation.
Mr H. O'Neil: Could you comment at all on that particular case? Would you want to?
Mr Gooch: I do not have a clear enough recollection of the particular matters in that example to pretend to comment on it particularly. What I would say in general is that because children's aid societies and other agencies do have a fair amount of discretion, I have no reason to question that witness's experience. I have no reason to doubt that what she said she was given access to or denied access to is in any way wrong.
I am concerned that the committee understand that there is at least the intent to go forward with a very comprehensive scheme that would provide access and would remedy some of the very real concerns that witness brought to this committee.
Mr Villeneuve: I also think back at that case, and it was a very traumatic case. I believe this was a 14-year-old and it involved the parent's communication with children's aid. Children's aid stood in the way of communication and I think advised the young lady, who was having major problems at that time, what her rights were, and it contributed in a negative way to a very tragic situation as the story unfolded. Is there any way when a 14-year-old has problems with a caring mother -- hopefully there would be two parents -- somehow or other to bring the two together, as opposed to seemingly wanting to split them? Do you have any jurisdiction over this? Are they autonomous? What is the score?
Mr Gooch: In general, the Child and Family Services Act strikes a very difficult balance between the autonomy and integrity of the family unit and some very specific procedural rights for children. I do not know how to give a more specific answer than that without talking about particular examples of interventions, where children do have some rights and they do not -- with respect to Part VIII, again the legislative scheme that has been contemplated would give parents the right to see their children's records, and that would give them at least some opportunity to question the service providers' decisions and evaluations of the situation. There are many interventions or attitudes that service providers bring or particular decisions they make that are outside the reach of any statute.
Mr Villeneuve: What was happening here, I recollect, was that finally the mother did get information through freedom of information. Some of it was blacked out. A lot of it was someone's interpretation, someone's opinion. In the mother's opinion this was not accurate information at all, and this was after the child had died. She was just trying to straighten the record, and apparently there was no way this record could be correct, be it all too late.
These are alarming situations indeed, where common sense has to be used. We are dealing with individual scenarios, and there is no pat answer across the board. You have to deal with so-called professionals who really know what they are doing, but there are instances where a great deal is left to be desired, and I do not know how we, as a committee, based on your input and input from others, can come up with some sort of a broad spectrum to assist parents, to assist CAS.
It is a very difficult scenario. That was a case in my riding where I was dealing with a lady who had a very similar problem with a young lady about the same age. Luckily, we hope, things have turned for the better, but it has been a real fight for the mother. When this young lady winds up in hospital, she keeps being told -- she is given her rights immediately -- "You do not have to communicate with your mother." In this case we have very caring parents, but a difficult communication problem.
Mr Gooch: In response, I believe it was the intent of part VIII in providing access by parents to their children's records, to give them a way to challenge or correct deficiencies that they saw in the service providers' perceptions or decisions. I believe that was the intent of doing it there. Certainly it is ministry policy that parents should have those rights of access, as I have described.
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Mr Villeneuve: I think somewhere, somehow, there must be some exception made. Children definitely have rights, of course. Whenever the reading of their rights compounds an already serious problem, somehow or other seemingly you would be able to overlook this. When we are dealing with the child who has major problems and all of a sudden he or she is being told, "You do not have to do this and you do not have to do that, you are on your own," it does not help.
Mr H. O'Neil: I have one other question. When you get into freedom of information and you get into opening up the records, whether it be to the child or to the parent or to someone else, there could always be the reluctance of the case worker wanting to put certain things down on that record that might be very important. Really, it is a contradiction saying maybe it should not be written down, but it is going to be made public. Would there be circumstances where there would be that reluctance and you might not have complete records? I wonder if you would like to comment on that.
Mr Gooch: Yes, there has been traditionally a very high level of concern by service providers about what open access to records would do to record-keeping. I believe that at the time of the amendment to the Mental Health Act, which provided an open access to clinical records, there were very grave concerns expressed by psychiatrists and other medical practitioners. It is my understanding that many service providers, in contrast to what you might expect -- and the scenario you sketched is quite a reasonable one -- what we are told is that service providers in fact find a contradictory result. They find that the records improve, because no longer can they simply state an opinion. If they write an opinion in a record, if they make an observation, if they propose an explanation, because they know the records will be accessible, they have to justify the positions they come to or they have to justify the observations they have made.
Mr H. O'Neil: Could there be a reluctance for them to write down certain things that would be important to the record?
Mr Gooch: I believe the proposed exemptions to access would address just that. If the service provider is reluctant to write something in the record because he or she believes that information would be very damaging or harmful or traumatic, there is a provision in the act. Again, if it were to be enforced, there is a provision in the legislation and under the amendments that would allow the service provider to withhold that record.
Mr H. O'Neil: Can you give me an example of that?
Mr Gooch: If a child were seeking access to a record and there was information on that record about the past sexual history of the mother, for example, and if that information were not known to the child and the service provider is very concerned about its effect on the child, that information could either be severed or it could be withheld.
Now the child would have a right of appeal, just as you do under the provincial statute, and the Child and Family Services Review Board would have a way of looking at that record and hearing the service provider's concerns about release, hearing the child's or the parent's request for access to that information, and reaching a binding decision about whether to release it. So there are safeguards and checks and balances built into this scheme.
Mr H. O'Neil: If, as you say, this present legislation is sitting on the minister's desk, I guess it is for the committee maybe to have a look at how important that is, whether we should be pressing that it be brought forward and something be done with it right away.
The Chair: Any further questions? There are none. I thank you for coming along here this afternoon and making your presentation.
There were two other groups of witnesses scheduled to appear before the committee this afternoon. They actually had been scheduled over the last number of weeks. For a number of reasons, they could not make it this afternoon, so we will reschedule them for next week. They are from the Canadian Political Science Association and from the Stadium Corp of Ontario. They will be scheduled in next week.
We hope to have a subcommittee meeting next Wednesday at 8 o'clock in the dining room.
Is there any further business before the committee?
Mr Villeneuve: Wednesday morning?
The Chair: Wednesday morning at 8 o'clock.
Interjections.
The Chair: If there is something else scheduled for next Wednesday, then we will reschedule it maybe for Tuesday. We will check on that.
Any further business before the committee? Would the committee members just hold on for a minute after we adjourn the committee for a chat. Being no further business before the committee, the committee stands adjourned until next Wednesday at 3:30.
The committee adjourned at 1606.